Gardina: Anatomy of social change

Editor’s note: This op-ed is by Jackie Gardina, a professor at Vermont Law School in South Royalton. Her specialties include sexual orientation and gender identity issues. VLS is one of two law schools in the nation that deny campus access to military recruiters because the “don’t ask, don’t tell” law conflicts with their non-discrimination policies. VLS plans to notify the Department of Defense that military recruiters are welcome back on campus once the law’s repeal is finalized.

In December, Congress approved and President Obama signed into law the “Don’t Ask Don’t Tell Repeal Act of 2010.” The Act defines the process for finally removing from the United States Code the only federal law that affirmatively discriminates based on sexual orientation. It was an historic moment, made even more so by the fact that just weeks earlier repeal had been declared dead. Through my work with Servicemembers Legal Defense Network (SLDN), I, along with many others in the Vermont Law School community, participated in repeal efforts and witnessed the amazing events that led to repeal.

Before I served on the SLDN Board, I never truly appreciated what was required to create social change. I had listened to debates about strategy in social movements. In any movement, activists disagree on how to achieve a common goal. Is it best to pursue the movement’s goals through litigation or through the legislative process, albeit at a slower pace? Is it better to accept incremental change or to hold out for the movement’s full goals? Is it better to operate within the system, playing by well-established rules, or to achieve change through acts of civil disobedience and protest? When it came to the repeal of the “don’t ask, don’t tell” law, I discovered that the answer to each of these questions was “yes.”

The repeal movement encompassed a broad range of strategies, each instrumental in the outcome. The success of the legislative strategy is the most obvious. Proponents of repeal were persistent in their efforts to remove “don’t ask, don’t tell” from the books. For six years, groups of 20 to 40 VLS students, faculty and staff traveled to Washington , D.C. , to participate in a national lobby day. We joined hundreds of veterans and civilians and visited every office on Capitol Hill, speaking about the necessity of repeal with legislative aides, military liaisons and sometimes senators and representatives themselves.

But the legislative efforts did not occur in a vacuum. The foundation of the eventual legislative success was laid through the courts, through the push for incremental adjustments to implementation, and though civil disobedience and the media attention it brought to the issue.

The effect Judge Phillip’s decision in Log Cabin Republicans v. Gates cannot be overestimated. In 2004, a year before the first bill to repeal “don’t ask, don’t tell” was introduced into Congress, the Log Cabin Republicans filed a suit in a California federal district court arguing that the law was unconstitutional on its face. Through a series of delays, including the retirement of the original judge assigned to the case, Judge Virginia Phillips did not declare “don’t ask, don’t tell” unconstitutional until the fall 2010. The six-year delay was fortuitous because it allowed Judge Phillips to rely on a 2008 Ninth Circuit case, Witt v. Air Force, that applied a heightened level of scrutiny to another “don’t ask, don’t tell” challenge. While the ruling was momentous, the remedy was even more so. She issued a world-wide moratorium on the implementation of “don’t ask, don’t tell” that lasted for eight days. While the moratorium was lifted by the Ninth Circuit, Secretary of Defense Robert Gates used the specter of court-ordered repeal of the law to spur Congress into action.

Proponents of repeal were also working behind the scenes to effect change through regulatory amendments. On behalf of SLDN, Dustin Brucher, who graduated from VLS in 2010, and I examined the scope of executive power and combed through the Department of Defense’s implementing regulations to identify possible amendments that would at least soften the impact of “don’t ask, don’t tell.” Based on our efforts, SLDN submitted a “Transition Paper” to President Obama after the election. In February 2010, Secretary Gates introduced new regulations intended to implement the law “more humanely.” The changes closely tracked our recommendations. While short of repeal, the changes made it more difficult for the armed forces to investigate and discharge a gay or lesbian service member. They also allowed the Department of Defense to begin the slow transition to full repeal.

When it appeared that repeal efforts were moving too slowly or stalled, some service members decided to work outside the system. Five veterans and former service members chained themselves to the White House fence, some of them in uniform. When President Obama spoke, GetEqual, an LGBT rights organization, sent protesters to ask – sometimes shouting over the President’s speech – when repeal was going to occur. While not everyone involved in repeal efforts agreed with their activities (I know several veterans who were troubled that the service members wore their uniforms when protesting), the media covered the events and “don’t ask, don’t tell” remained in the news.

The last chapter of this story hasn’t been written yet. The “Don’t Ask Don’t Tell Repeal Act of 2010” did not actually repeal the law; it simply provided a process for doing so. As a result, the Ninth Circuit refused the government’s request to dismiss the pending appeal in Log Cabin Republicans v. Gates as moot. Nonetheless, we appear on the brink of ending this discriminatory practice. Would we be here if there hadn’t been litigants willing to bring challenges to the law in the courts; if there hadn’t been efforts to push for incremental change; if there hadn’t been consistent pressure placed on Congress; if there hadn’t been vocal activists willing to work outside the system? I doubt it. Social change requires multi-dimensional strategies, good timing, and quite honestly, a little luck.

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I would think the success thus far is also at least partly attributable to the fact that repealing a discriminatory practice has a solid moral basis; this ensures that the issue resonates far beyond the circles of those who are most ardent in their activism for repeal.